School District Must Provide Agreed-Upon Compensatory Services Within Ten Days of an IEP

A federal district court in Illinois recently upheld a hearing officer’s finding that a school district’s failure to implement agreed-upon compensatory services in a timely manner denied the student a free appropriate public education (FAPE). In Board of Educ. of City of Chicago v. Illinois Bd. of Educ., the student’s Individualized Education Program (IEP) authorized compensatory services including two years of tutoring and speech therapy. The Illinois State Board of Education regulations provide that "when an IEP has been developed or revised ... implementation of the IEP shall occur no later than ten days after [notice of the action]." 23 Ill. Admin. Code 226.220. While the Board of Education implemented most of the student’s IEP within ten days after the IEP meeting, it did not begin providing the agreed-upon tutoring and speech services. The Board asserted that, unlike the rest of the services contained in the IEP, it did not need to provide compensatory services by a date certain. The parents, however, argued that the Board should have implemented the services within ten days.

The hearing officer and the court agreed with the parents, holding that the ten-day rule set forth in the ISBE regulations applied to the student’s entire IEP, including the agreed-upon compensatory services set forth in the IEP. Specifically, the court acknowledged that the special education regulations make no distinction between compensatory and other services. Rather, the court stated that a “FAPE by definition requires that instruction and services comport with the child’s IEP.” Accordingly, the court held that a student could assert a procedural violation against a school district for not implementing all of the terms of a student’s IEP in a timely manner, including any compensatory services contained in the IEP. Notably, the court held that a student did not need to prove that he or she suffered a serious educational harm to demonstrate such a procedural violation.

Importantly, the court acknowledged that compensatory services which a district may not be able to implement in a timely manner, such as those services which are required following graduation or are required to commence after a child reaches a certain age, are not subject to implementation within ten days. In this case, however, the court determined that nothing prevented the Board from immediately implementing the agreed-upon tutoring and speech services.

The court’s decision clarifies Illinois’ ten-day implementation rule for school districts—that all of the services contained in an IEP, including any agreed-upon compensatory services that can begin immediately, must be implemented within ten days.